In the third episode in our series on women’s reproductive rights in America, Jane Roe & the Pill, we finally get to two of the most important turning points in our story: the invention of the hormonal birth control pill, and the Roe v. Wade case in 1973. The mid 20th century saw some critical turning points for women’s reproductive rights, but also created lasting political divides and moral dilemmas. Join Elizabeth and Sarah as they continue the conversation.
We invite you to listen to our podcast, read the transcript below or watch the YouTube video at the bottom of this post.
Transcription of Jane Roe & The Pill
Written and researched by Sarah Handley-Cousins PhD
Produced by Sarah Handley-Cousins PhD and Elizabeth Garner Masarik, MA, PhD Candidate
Elizabeth: Welcome to the third episode in our series on the history abortion and birth control in America. We left off in our last episode discussing the conservatism of the late 1940s and the 1950s and how that affected women’s reproductive rights. Today, we’re picking up there to talk more about women’s reproductive health in the late 20th century, with some big key events – ah, Roe v. Wade and the invention of the hormonal birth control pill.
I’m Elizabeth Garner Masarik,
and I’m Sarah Handley-Cousins,
and we are your historians for Dig, A History Podcast.
Sarah: In the 1950s and 60s, healthcare became more consolidated in medical hands. Hospitals began developing abortion panels to protect themselves from lawsuits and surveillance from the state. Because of this, it became much harder to obtain a therapeutic abortion and women’s needs and knowledge of their bodies, something we talked about a lot in the last episode, was completely taken out of official decision-making by doctors and the state. During the 1950s and 1960s abortions were pushed underground and the death rate rose. Particularly affects women of color. The rising death rate prompted both feminists and medical personnel, including psychiatrists, to begin pushing for more lenient abortion laws. And one thing to remember, and that is clear from the historical record, is that abortion and birth control were needed and widely practiced throughout the 20th century. The only thing that changed were the means for procuring abortion and birth control as medical and state surveillance changed. The increased restrictions and policing on abortions during the post-war period drove the death rate up. And of course the death rate from illegal abortion was higher for women of color because they had limited access to safe hospital abortions. In New York City between 1951 and 1962, illegal abortion-related deaths for women of color doubled. In Cook County Hospital, in Chicago the number of illegal abortion-related complications treated rose from one thousand per year in 1939 to over three thousand per year in 1959. Government estimates in the late 1960s and 1970s estimated that annual illegal abortion rates each year fluctuated between 200,000 and 1.2 million.
Those are really staggering numbers there.
Elizabeth: These, these are… and as a side note, Cook County..er..this Chicago hospital basically had to create an entire ward just to take care of women who were coming in with complications from illegal abortions.
Sarah: That’s unbelievable.
Elizabeth: It’s…it is. It really is. That’s why we’re telling this story.
If women of color were able to gain access to a hospital abortion, many were actually forced to accept sterilization in return. A Chicago study in the 1940s showed that 67 percent of women who received abortions at a particular hospital servicing low-income patients, were also sterilized. Many black women across the country were sterilized against their will or knowledge well into the late 1960s.
Sarah: Yeah and wasn’t..sorry to kind of jump in here…but from what I understand..well maybe now that I say this..not been tied as much to abortion as to deliveries, births, but in California and in the Southwest, wasn’t there a rash of um, Chicana women who were sterilized also?
Elizabeth: Absolutely. Chicana women and then also the Native American population also as well. So basically if a woman was going in for any kind of gynecological, uh I don’t want to say surgery..
Elizabeth: Service, yeah. Births, abortion, asking for birth control… um what-have-you, it was always this kind of give and take. “Well you know what? You can get this, if in return you get sterilized.” And that’s if consent was even asked. A lot of the times consent wasn’t asked and women would find out well after the fact…
Sarah: They woke up from twilight sleep or something like that and they had been sterilized.
Elizabeth: Or many years later. There’s um, lots of instances where women not even knowing this had happened to them until they were trying to have a child with like their husband or something later in life and went in and asked, “why can’t I get pregnant?” and they found out that way.
More affluent white women with hospital and doctor connections were much more likely to receive a therapeutic abortion than working-class women or people of color. A study in New York found that white women who were private patients at area hospitals received therapeutic abortions in numbers four times greater than women in public hospital wards, whether they were white, black, or Puerto Rican. Class inequality was practically built into the system. For example, a San Francisco hospital allowed private patients to have a therapeutic abortion with the approval of only one staff obstetrician. On the other hand, public “clinic cases” required the review of the entire OB-GYN staff and then a vote was then taken by nine professors on the staff.
For the most part, women did not voluntarily talk about abortion in public. And I think one thing that we might want to remind our listeners too, is a therapeutic abortion. So although abortions were illegal, there was this grey area in the law where a therapeutic abortion could be performed legally. And so, what that ends up doing is that women who have private access to healthcare professionals that “trust them” right, that they have a relationship with-those women who can afford that kind of relationship with a doctor are getting therapeutic abortions at a much higher rate than working class women and women who can’t afford this one on one privacy with a doctor. Who are having to go into hospitals – charity hospitals. Right, you know, or, publicly funded hospitals. So it creates an inequality in the care basically between demographics and between class.
Sarah: Right. And another thing we should clarify, and again I think we talked about this in the last episode, but just as a reminder- when we say therapeutic abortion, we mean that that’s an abortion performed, obviously as you indicated, by a physician. Um, because abortion is illegal, you can go to your doctor and essentially they make the case that the abortion is therapeutic. There’s a medical need for that abortion. Right? Um, therapeutic sort of makes it sound as though, um, there are extenuating circumstances. Right? That it’s maybe like psychological.
Elizabeth: Well, and that’s..and, and that’s kinds of what I wanted to go back to. I mean, at the beginning, or earlier I had mentioned, or you had mentioned…one of us had mentioned that …
Elizabeth: You know that psychiatrists are start, start pushing for this because…therapeutic abortions-that’s one of the reasons, especially white women, are getting them. It’s going to be a psychological burden on this women…
Sarah: OK so it is almost therapeutic.Yeah.
Elizabeth: So therapeutic covers the gamut from there is a medical problem and somebody’s gonna die if this abortion doesn’t happen to this is gonna create a hardship for this woman, whether she has seven kids or she’s not ready to have a kid, or whatever…you know. So psychiatrists kind of start becoming part of the conversation.
Sarah: Right, yeah.
Elizabeth: Which has been part of the conversation as we talked about in the last episode, in the 1930s you know women couldn’t afford more children so they would want to have abortions and they would want to get birth control- so it’s not like the conversation changed. It’s just, again, this kind of discourse and the law and in the profession, and their interaction with women seeking abortion changes, as time goes one.
Elizabeth: For the most part, women did not voluntarily talk about abortion in public. However, this changed in the 1960s when three major incidents really changed public discourse about abortion. (thalidomide, rubella, and feminism)
Sarah: In 1961, West German pediatricians noticed that the number of babies born with the deformation of shortened limbs had tripled since the year before. Doctors figured out that thalidomide, a drug used in sleeping pills, cough syrups, and other over-the counter medications sold in West Germany and England was the cause of these deformations. The drug also caused many brain-damaged babies, miscarriages, stillbirths, and early infant deaths. Although not in wide use in America, physicians had handed out over one thousand pills to their American patients. Sherri Finkbine was an American woman who had taken a sleeping pill containing thalidomide and sought a therapeutic abortion after learning of the high risk of birth defects. She was the first woman to publicly share her desire to have an abortion and gained the support (and some ire) of many Americans.
Finkbine was a white, middle-class mother, pregnant with her fifth child who talked openly with the press of her sadness as she learned of damage done to her developing baby. The press followed her story closely and watched as her doctors denied her a therapeutic abortion for fear of prosecution. Finkbine and her husband travelled to Sweden to obtain an abortion. A Gallup poll showed that 52 percent of Americans agreed she had done “the right thing.”
And, just want to pause here for one second. It’s sort of a story in my husband’s family that his grandmother, his family is from Scotland, his grandmother took thalidomide throughout her pregnancy with my husband’s father. And so, they uh, narrowly avoided, I guess, any problems because he was born with um, you know, with no abnormalities. So, I just think that that’s an interesting reminder that this was not very long ago. People that we know took thalidomide during their lives. So, just. I think that that’s really interesting.
A rubella epidemic hit the West Coast of the United States in 1963 and by 1965 had spread across the U.S. and proved to be the largest rubella epidemic in 20 years. Infectious disease specialists warned Americans that pregnant women who contracted rubella within the early stages of pregnancy were at a 50 percent higher risk of delivering a baby with serious malformations and limited brain capabilities. CBS Television News announced that rubella was “a far more widespread threat to unborn babies” than even thalidomide.This again increased the public discourse on abortion and the rights of women to legally obtain them.
And this I find really interesting because you can avoid thalidomide, right, you can just not take thalidomide. Um, it’s a very different story to try to avoid an infectious disease that’s rampaging across the United States. And going off of that I think that this is very much a conversation that is happening right now. Or this past summer. The concern over the birth defects caused by the Zika virus in Central and South America. Um, babies being born with microcephaly, right, being born with very, very small brains or with almost no brain at all. And that has reawakened the debate in Central and South America about whether or not to make abortion legal. Because, and so it’s sort of reawakened conversations in those countries about, if we are at risk of these terrible birth defects, then we need to have access to what they might term therapeutic abortions.
Elizabeth: Right, and Zika we should remind listeners, is contracted from mosquitoes. So you cannot avoid mosquitos. They sneak in everywhere.
So back to the U.S. 1960s and the subsequent demand for abortion by primarily white, middle-class women changed the discourse about abortion from one of shame and “back-alley butchers,” to a discussion about medical informed consent, disability, and the right not to give birth. By changing the discourse, or the talk, to one of quality of life for both mothers and potentially disabled babies, pregnant women and many in the medical profession impacted the politics of abortion. The rubella epidemic caused a cultural and social change surrounding the understanding of abortion. And I think too, just to kind of bang people over the head with this- once white women start talking about it, then it’s “okay.” Then it’s “okay” to talk about it.
Sarah: And, I think too….
Elizabeth: I want to say in quotes okay. [laughter] Since you guys can’t see me.
Sarah: Right. Yeah, it’s not all of a sudden it’s perfectly fine, or perfectly acceptable. But I think also, not only that it’s white middle-class women, that’s certainly a huge part of it, but also it’s the reason that their seeking abortions as this thing that’s outside of their control. It’s beyond their control. They’re not asking for abortion access because they had extramarital sex and they don’t want to have the baby. This is almost divorcing it from the morality issue around sexuality. And instead I’m an even better mother because I don’t want my baby to suffer. Changes the way that people talk about this, about abortion.
Elizabeth: Absolutely. So, something as “biologically natural” as reproduction is actually a construct of the cultural and social environment of the period. So the rubella epidemic of the 1960s changed the social aspect, or politics, of abortion, making it more acceptable to many people and doctors, when it is kind of divorced from its sexuality in a way. Um, so these two causes of birth defects increased the public discourse over the authority the state, or even over doctor’s themselves, um, that they had in matters of women’s health. They caused serious questioning of pre-existing laws surrounding medicine and abortion such as patient’s rights, informed consent, disability, and racial discrimination in healthcare.
Sarah: Now this brings us, I think, to an important point in this story – a very contentious point in this story-although, I say that…this is an episode that’s entirely about abortion and birth control- I think everything is contentious right?
Elizabeth: This episode is making some people very mad. [laughter]
Sarah: Um, as the other one’s have. But, we have something here that very much continues to be a real topic of contention. And that’s this linking of disability and abortion. The women who advocated for abortion access because of the threat of rubella or thalidomide, were doing so because of the perceived threat of rubella related disability, or thalidomide related disabilities. Women who feared their children may be disabled as a result of those things in the 1960s were operating within a society that feared and hated disabilities. Children were warehoused, kept in institutions, stigmatized. Children with differences that today would be managed, like Down Syndrome, were strongly encouraged by their doctors to be taken to institutions rather than live at home with their families – meaning that these kinds of disabilities were almost invisible. You didn’t even see these children in the classroom or the church or the grocery store. There wasn’t the mainstreaming that you have today. There was no educational opportunities, no IDEA or ADA. So for many women, abortion was the safer and perhaps, in their minds, more loving choice. But the connections between disability and abortion was also problematic, it remains problematic. They were making the assumption that a life with a disability is so abnormal, so atrocious that it’s better to not be born. Yet, many disability activists argue now that the reason that life was so “horrific” for disabled children in the 60s was not because of the inherent differences or needs that come with a disability but because of society – the inaccessibility and stigma. Of course this gets into the differences in um, the modes of understanding disability right? We have a medical model of disability, that’s really the hegemonic or overarching one which says that disability is a medical problem that can be and should be cured by doctors. But the one that disability activists and scholars espouse is the social model which actually argues that the only reason that disability is, are disabilities, is because of society. Because of an ableist society that makes it difficult, sometimes impossible for people to live typical lives.
Elizabeth: Right. It’s the difference between building stairs and building ramps.
Elizabeth: In a very simplistic term. That’s, if you’re trying to wrap your head around that.
Elizabeth: Why do we have to build stairs? Why can’t we have ramps, everywhere. If you can think of it in those terms you can kind of see the difference between a medical model and a social model.
Sarah: Yeah, you’re not really disabled if you live in a society where you can do everything that everyone else can do because of the way that the, that your environment is structured. The disability stops existing. In a sense, of course, the physical difference, the bodily difference is still there but it’s not disabling. If, if that made sense.
Elizabeth: Yeah. Absolutely.
Sarah: This gets- I have so much of an easier time explaining this in like academia speak, than I do in like real people talk. I was teaching this to my students the other day and I was like really struggling to translate it, and I think they got it eventually but…
Elizabeth: Well, I mean I even hesitated bringing up the idea of like stairs vs. ramps because then you’re only thinking of disabilities in the physical sense.
Elizabeth: You know…it’s so much deeper than that and we really should do a whole podcast on this…[laughter]
Sarah: I think that’s a great idea.
Elizabeth: Try to break it apart.
Sarah: The other example that I gave my students, I was at a conference where one of the keynote speakers used a wheelchair. And the two speakers ahead of this person, the first person went up and the podium was on a stage, went up on the stage, gave their part of the talk, came down, second person went up, gave their talk at the podium, came down, came to the third person, the person who used the wheelchair and it was only then that all of the organizers of the conference and everyone who was there realized that there was actually no way for him to get onto the stage. And there was no moveable mike. So he ended up giving his part of the talk from the bottom of the state where no one could hear him because of the physical environment that he was giving his talk in. The other example that I gave my students, to try to combat this idea that disabilities are only physical, was about autism and having more spaces in our society that are low stimulus, Right? Like low light, low sound, kind of safe environments for autistic children without the kind of triggering things- lights, noises, chaos, right? That can sometimes trigger autistic children into panic. And how we really only find that in places that are having a dedicated like “afternoon for children with Autism” instead of that just being the norm. So.
Elizabeth: And that thirty years ago that wasn’t an issue. Because that kind of stimulus wasn’t in our face all the time. We weren’t looking at screens, and lights, and sounds, and music… maybe not forty years but sixty, or you know, that wasn’t an issue before so now it’s also in our face more so even like the social and cultural changes in our society then bring out “disabilities” that maybe we didn’t even know about before because that wasn’t an issue.
Sarah: And forty, sixty years ago those children would have been institutionalized. They wouldn’t have been a part of our society, that we would have had to think about changing those things. Because they wouldn’t have been around.
That was a long story about the medical versus social models of disability. Hopefully that was useful.
Elizabeth: Well, I think that it’s important for us to kind of dig into that in this story,… er, in our discussion of abortion because it makes it really sticky. And, I mean, it, it, it has to be brought up and it has to be discussed and I think some pro-choice advocates tend to try to avoid that discussion and I don’t think that’s fair. I think we as historians need to bring it up and present everything.
Sarah: Absolutely. So this remains a hotly debated subject, as many people still believe that you should have the right to abort if a fetus is disabled (“selective abortion”), while disability rights activists argue that this is based on the assumption that disabled lives are not worth living. This is often also extended further — that aborting fetuses with disabilities is a slippery slope. What’s to stop us from simply aborting all fetuses diagnosed with, say, Down syndrome? And eliminating Down syndrome (or minimizing it as much as possible) from the population? That’s eugenics, right? That’s bioengineering the human race.
However, it’s important to articulate here that disability rights activists are not anti-abortion; however, the position is more that they are pro- all choice – in other words, the choice to *not* have an abortion if you’re carrying a fetus with a disability. The fear is that there may come a time when it’s required, either by law or by pressure or by stigma, to abort all disabled fetuses.
And this has become even more in recent years as we’ve been able to screen for disabilities and abnormalities earlier, and earlier, and earlier in pregnancies. And i think one of the things that’s of concern right now is that while no, there aren’t any laws that say that, you know um, you had this blood test and your blood test says that you’re likely to be having a child with Down Syndrome, um, you have to have an abortion. There’s no laws that say that. But the concern right now is that, when you have that testing very, very early and the doctor looks at you and says “do you understand what you’re getting into? This is gonna be so difficult.” You begin thinking about all of the money and the time and the rest of your life being, you know, sunk into caring for a child with a profound disabilities and that pressures people into having abortions that aren’t necessary. And it further stigmatizes disabilities, and if we stopped stigmatizing them and instead kind of poured energy into um, creating a less ableist society, it would be less disabling. Those ailments, or those abnormalities would be less disabling.
Sarah: I think also in our society, and especially as there’s criticism against government spending, education spending, the growth of things like disability and social security disability, uh, funding Medicare and Medicaid, a lot of those debates also have relevance to the lives of people with disabilities. Especially disabled children. Right? If we cut Medicaid, um, that cuts a lot of the services that these children rely on and so that I think, is part of this fear. That if we’re trying to cut down on government spending maybe that could be the kind of rolled into a pressure to eliminate people with disabilities from the human race. Right? Um, because then it becomes, “well why did you choose to have a child with Down Syndrome? Why did you choose to have a child with Spina Bifida? When you could have aborted and avoided this public charge?”
Elizabeth: Right, right.
Sarah: Alright so back to our narrative, back in the 1960s, many Americans believed that the decision to have an abortion should remain a private one between a woman and her doctor. Ironically in the 20th century, physicians became some of the leading voices championing more liberalized abortion accessibility. So if you remember back in our first episode on family limitation in America, physicians were the ones trying to regulate abortion so that they would have more professional power over women’s reproduction and over the medical field in general.
By 1967 a survey found that 87 percent of American physicians favored a liberalization of the country’s abortion laws. On the contrary, those against access to abortion, especially the Catholic Church, began to form a stronger movement in opposition to relaxing abortion laws.
Feminism and resistance at the grassroots level also became a driving force towards laws against abortion repeal. Underground movements such as “Jane” in Chicago and The Society for Humane Abortion in California created their own illegal abortion networks in order to provide safe abortions for those seeking them. Between 1967 and 1973, “Jane” in Chicago provided approximately three thousand safe, but illegal, abortions per year.
Elizabeth: Yeah, I mean when you read- like- this was all just an underground network. And these women were basically teaching each other how to do this and then you know, if you needed an abortion word on the street was you go to “Jane” and you’d go and it was safe, it was sterile, you know, they were using medical grade equipment. I mean… it’s crazy.
Sarah: And one thing, if I can just sort of interject, one thing that I’ve already begun hearing in recent days in our current political environment is feminists starting to imagine a future in which we have to have systems like “Jane” again. To try to almost create an underground railroad of sorts where women from states uh, with very restrictive abortion access like Texas can be sort of, um, transported by like-minded women up to states like New York which, it’s very likely will continue to have abortion access even if Roe v Wade was to be overturned.
Elizabeth: Yeah, I mean right now there’s a uh, there’s an entity out of Texas called “Jane’s Due Process” and it’s actually…they… sigh…and forgive me if I’m getting this wrong…but they basically take donations and they help women or girls who are underage, so who need parental consent, or whatever, they help them…and…they either help them to get some kind of injunction or whatever to kind of overrule that or it is that they help them to go to another state to get an abortion. I can’t remember which..but..
Sarah: Either way….
Elizabeth:…those kind of organizations are already in effect and I mean, if things keep kind of moving in the way that they seem to be moving I think that you’re right, that that’s just going to become more and more a reality.
Elizabeth: By the mid-1960s, women had formed numerous groups across the country organizing to push the repeal of abortion laws. Groups planned speak outs where women publicly stood up and spoke about their illegal abortions. This move from private to public discourse greatly shifted the power dynamic in the abortion fight.
Sarah: In 1970, we have the beginning of the major change in this story. In 1970 a young woman named Norma McCorvey discovered she was pregnant with her third child, Norma had a very difficult life – she had a really troubled childhood, married very young to an abusive man who beat her when she told him she was pregnant for the first time. She did not want another child, but it was illegal in Texas to get an abortion except in instances of rape or incest. Norma McCorvey them, um, invented a horrific story – that she had been gang raped while working at a carnival. When she realized she was pregnant from this so-called gang rape, she sought out an abortion, but had no success in finding a doctor that would perform the procedure, even with this invented story. Getting desperate, she thought about maybe giving the child up for adoption. And so as she was trying to explore that option, she had to meet with some lawyers who arranged for private adoptions. One of the lawyers she met with asked her if she might consider talking to another lawyer, named Linda Coffee. She agreed, and not long after, Norma McCorvey met with Linda Coffee and another attorney Sarah Weddington, who were looking for a woman to be a plaintiff to challenge Texas’s restrictive abortion laws. Court cases move very slowly and though uh, McCorvey agreed to be the plaintiff in this test case, by the time the case kind of churned its way around, um, McCorvey had already delivered her baby and given it up for adoption. So, you know, we will explain how the case unfolds. But either way, McCorvey didn’t get her abortion.
Coffee and Weddington were both female attorneys looking to make a difference – and this seemed like something they could do to aid the women’s movement with the skills they had. In 1970, the Texas law was found unconstitutional by a three-judge panel of the Texas district court. It was appealed, of course, and that same year, it was taken up by the Supreme Court of the United States. By this point, McCorvey was using the name Jane Doe in the case in order to protect her privacy – after all, I think it’s easy to forget, this was very dangerous for her. Right? So blatantly associated with a case asking for access to an abortion. The arguments were scheduled for Dec 12, 1971. The arguments did not go smoothly – the attorneys on both sides were not necessarily primed for appearing before the highest court in the land. But as the arguments went on, McCorvey’s lawyers sharpened their talents. In a 7-2 decision led by Justice Harry Blackmun, the Court ruled that the Texas law violated the right to privacy, and that there was a “zone of privacy” around laws that attempted to legislate marriage, reproduction and child rearing – they called upon the previous case Griswold v Connecticut…you’re coming back to Griswold?
Elizabeth: Yeah, we’re going to come back to that one.
Sarah: We’ll kind of roll around back to Griswold v Connecticut in what that said in a minute, which was a case over whether Connecticut had the right to outlaw birth control for married couples, which had ruled that the the right to privacy (privacy within a marriage) was fundamental and substantive and that the state could not legislate the decisions and actions undertaken within the marriage. Um, they sort of expanded that idea of privacy. That if it’s within, if you have the right to privacy within a marriage, decision-making within a marriage, women individually have the right to privacy in the decision-making over their own bodies.
Elizabeth: Well in this case married women.
Sarah: Correct- wait…. Oh in Connecticut?
Sarah: In Griswold v Connecticut but not in Roe.
Sarah: Jane Roe was not married. She had been married, but later divorced. I want to pause here just to say that the story of Jane Roe/ Norma McCorvey is very complicated. McCorvey ultimately gave up all three of her children to be raised by others. Her first child, her daughter was raised by her mother. The other two were given up for adoption. Later in her life she identified as lesbian or a bisexual at various points. She identified with different terms. When she came out as the plaintiff in the case, because remember she went as Jane Roe, so her name wasn’t associated with it. In the 1980s when she did announce that it was her she was viciously attacked. People sent her death threats, someone shot out the windows of her home, people called her a baby killer and spit at her on the street. She was an ardent and vocal advocate for abortion rights, but then later in life underwent religious conversions, twice actually. First as an evangelical Christian and then again she converted and became Roman Catholic. And as she underwent these conversions she publicly changed her position and became quite conservative and very anti-abortion. At one point, she even suggested that it was pro-abortion activists who caused violence against abortion providers. In other words, they brought it upon themselves. She wasn’t exactly what either side wanted as a hero – she was a fascinating, complex, and entirely an individual. But at the same time, many scholars have, have argued that she was “used” by both sides of the debate, and many have criticized her being um, sort of weak-willed in all of this and she kind of flipped from side to side on a whim and at the pressure of whoever she was associated with at that time in her life. Right? Like at one point she’s this very vocal abortion access advocate and then at the next point she’s um, she’s you know marching on Washington as part of the March for Life. Right? Like, this very, it just, it kind of frustrated people that she could flip that easily. Or that, um, simply. And I pulled this quote from her autobiography because I think that it really sums up something about Norma McCorvey and her role in all of this. It says:
“I wasn’t the wrong person to become Jane Roe,” she said. “I wasn’t the right person to become Jane Roe. I was just the person who became Jane Roe, of Roe v. Wade. And my life story, warts and all, was a little piece of history.”
And I think that really encapsulates this case right? She wasn’t a hero to either side all the time but she was the woman that got this done.
Elizabeth: Right. So many of these really important Supreme Court decisions, they start out as test cases. So you know, in a lot of ways the situation that drives them to the Supreme Court is..um…I don’t know if constructed is the right word. But, you know Jane Roe comes along at the right time when certain people are looking for the right woman to push this forward. Right? Um, in Connecticut v Griswold which we’ll talk about in a second, these two people that take it to the Supreme Court understand that the law has to be challenged so they construct a way that they can get arrested and then take it to the Supreme Court to be challenged. And this happens over and over and over again… I mean even with Rosa Parks.. Right?… that was in the planning. You know, somebody was not going to get up on the bus.
Sarah: Plessy v Ferguson was the same thing.
Elizabeth: Right, Plessy v Ferguson, like, like, he was a Black man who presented as white, right. He was very racially mixed right. So he goes and, and sits on the train in the white person’s part of the train and then basically declares he is Black and forces himself to, er, forced them to arrest him, you know…to kind of…
Sarah: To force their hand…
Elizabeth:…to force their hand and take these cases further.
Sarah: And this is so interesting to me because what ends up happening is that we rewrite the stories about these Supreme Court cases so that now Rosa Parks was just this poor working lady who was soooo tired, her feet hurt, and all she wanted to do was sit down on that bus…. Right? And Rosa Parks was like a bad-ass Civil Rights activist.
Elizabeth: Right, she had been doing this for a long time.
Sarah: Yeah, and she was like ready to get arrested. Right?
Elizabeth: Right, as were other people. Right? It’s just, you know, it was the right moment, the right time.. And this is how a lot of these kind of cases come about.
Sarah: And that also I think, um, point out just how unusual Jane Roe was. Because she was in the right place at the right time, but she wasn’t an activist, she wasn’t in it um, like Rosa Parks was. Right? She wasn’t in it for the fight necessarily. She actually just kind of wanted to have an abortion and get on with her life.
Elizabeth: But in another way, I mean, I think she was probably- at the time- was a good test subject because A, she’s working-class and B, she’s a white woman. Right? And so in the context of the period, unfortunately, they need a white woman because with the racial tension….
Sarah: It wouldn’t have gone to the Supreme Court.
Elizabeth: People had more compassion for white women.
Sarah: Right, they wouldn’t have had the same cultural cache.
Elizabeth: Right. Thank You.Placing abortion in the context of the “naturalness” of human existence has been a classic argument in defense of abortion. One of the most important points in the 1973 majority opinion in Roe v Wade, by Justice Blackmun, upheld that abortion has been practiced and tolerated in America since the 1600s. Um, so he’s basically saying in the majority opinion that look, women has been doing this since America’s existence right, so who are we to regulate…
Another important point from the ruling is that the court stated that fetuses were not legally considered persons, and therefore not covered by the Constitution — while there were, and are, some who believed that fetuses count as people, others do not, so there is no consensus. Texas, according to SCOTUS, was taking only one group into account. The decision in Roe, however, was still limited – while it did agree that abortion must be legal early in pregnancy; after the first trimester, they left the decision of when to restrict abortion to the states, under the argument that this was when the state’s interest in protecting the “potential life” would be compelling. In other words, the longer the pregnancy advanced, the more complex and complicated this became. I might add, that this is where most of our current legislation and fights over abortion come from today – this aspect of allowing the states to make the decisions after the first trimester. And going back to the arguments in Roe v Wade, racial discrimination in access to abortion was also used as an argument. Lawyers argued that white women were more often able to persuade their private physicians to allow access to abortion. It was also argued that wealthy women had the means to travel to areas where abortion laws were not heavily enforced, while poor women could not. Thus, state abortion laws were argued to be discriminatory.
Sarah: So far we’ve spent most of our time discussing abortion. Now we want to turn to birth control.
As we mentioned in our previous podcast, “Birth Control and Abortion before Roe v. Wade,” many states enacted laws against abortion and birth control in the mid to late 19th century.
Elizabeth: An 1879 Connecticut law that criminalized the encouragement or use of birth control stated that “any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days.” The law further stated that “any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”
By the 1960s women’s rights and birth control itself had come a long way since these laws in 1870s.
Sarah: We talked a great deal last time about birth control pioneer Margaret Sanger, who was the founding mother of Planned Parenthood and rarely birth control activist during the early 20th century. She did not stop working in her later years by any means – she remained doggedly active in birth control research and advocacy. In the 1950s, Sanger met biologist Gregory Pincus, who had been doing some experiments with early in-vitro fertilization, and asked him to begin researching how hormone therapy of some kind might be used as contraception. I guess Gregory Pincus um, had made quite splash in the 1950s because he was impregnating rabbits with in vitro fertilization, which I think is kind of funny.
They did not realize this, when they were having their early discussion, but there already was a scientist named Carl Djerassi, living in Mexico City, who had created a pill made out of the Mexican wild yam, which functioned like a progestin analogue. This was, effectively, the first real birth control pill.
I’m pausing here because this makes me laugh. Also because it involves wild yams, and have you ever seen the show “Grace and Frankie?”
Elizabeth: No, I see it on my Netflix thing all the time like, “You should watch this,” but I haven’t clicked on it.
Sarah: It’s hysterically funny. But Frankie makes, in the first season, she makes this um, lube [laughter] for older women who would like to have sex but are having a hard time because of dryness- out of yams. [laughter] And so her big selling point is that it’s edible…
Elizabeth: [laughing] Oh my God. Okay. I have to see that now.
Sarah: So yams. OK.
Elizabeth: But not the same kind of yams.
Sarah: Not the same kind of yams, this is a mexican wild yam. This was effectively the first real birth control pill. Back in the US, Sanger helped to arrange for wealthy feminist and widow Katharine McCormick to pay for Pincus’s research. In 1956, the FDA approved the use of Pincus’s pill for medical reasons – like irregular periods; it was, after all, still illegal in many states to provide birth control. So even though the first birth control pill comes onto the market in the late 1950s, you technically could not prescribe it for birth control. You could prescribe it to regulate periods, ease cramps, stuff like that. So what happens is this kind of huge spike in women going to their doctors saying, “oh my cramps are horrible! I heard there’s this new pill.” Right, so that even though before the FDA approved the new pill for birth control use, millions of people were already on it. In 1960, the FDA approved Enovid, the first real contraceptive pill – and by 1965, 6.5 million American women were on the pill.
Sarah: That’s a huge. That’s just like BOOM. Right.
Elizabeth: I’m just thinking, Griswold is 1965, so, in just five years 6.5 million women are using it. That’s insane. That’s awesome.
Sarah: Which I just think again proves that there was a demand! Right? Like women wanted this. Not just women…
Elizabeth: Families, everybody.
Right so, that just shows that women wanted and expected to be able to obtain birth control from their healthcare providers. But laws preventing women from accessing safe birth control from their medical practitioners led to some pretty important court cases, as we’ve alluded to earlier.
Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, doctor and professor at Yale Medical School in an attempt to get the 1897 Connecticut law overturned opened a birth control clinic. So again when we were sort of talking about forcing the hand right. They decided they want to overturn this so they open up a birth, a very public birth control clinic…
Sarah: It’s the same thing Margaret Sanger did, in 19- what 1915 or 1917.
Elizabeth: So they open up a birth control clinic, um, they are in business I don’t know, like 5 or 10 days, something like that, were arrested and convicted in state court of selling contraceptives. They were each fined $100 each. Um, Griswold and Buxton appealed to the Supreme Court of Errors of Connecticut, claiming that the 1897 law violated the U.S. Constitution. The Connecticut court upheld the conviction, and Griswold and Buxton then appealed to the U.S. Supreme Court, which reviewed the case in 1965. The Supreme Court decided in a 7 to 2 decision that the law violated the “right to marital privacy” and could not be enforced against married people. Um, so over the next 10 years, so between 1965 and 1973, uh, the Court expanded this fundamental, substantive “right to privacy” beyond the bonds of marriage. Um, so in ruling that the state could not ban the use of contraceptives by anyone in the case of Eisenstadt v Baird in 1972.
Elizabeth: Eisenstadt, excuse me, what did I say? Einstein?
Sarah: Eisenstadt referred to unmarried women.
Elizabeth: Right it referred to all people, right? So, Griswold v Connecticut is- married women can get birth control, and then it takes another, what is that? Seven years before all women- so- unmarried women. So essentially between that time you have women kind of, gaming the system in a way, they’ll show up to their doctor wearing a wedding ring, and say that they want birth control.
Sarah: There’s a lot of wink, wink, nudge, nudging happening…
Elizabeth: So Eisenstadt v Baird is in 1972 and then Roe v Wade in 1973. And then, yeah, and then… jump in here too… like when were you born, in the 1980s?
Elizabeth: It’s like, I mean, I don’t want to…
Sarah: I was born in 1995 [laughing] I’m just kidding.
Elizabeth: I dunno, when I hear that I’m like, “God, you could be my kid. That’s so weird…”
So yeah, I just want to pause here for a second and think about this because it’s so mind-blowing. Like how fast all of this change has happened. I mean, I was, personally, not all of us [the History Buffs], but I was born in the 70s and so um, like this was within my lifetime. And even to me, this seems like something that is spoken about like it was soooo long ago. So I’m sure that women who were born in the 90s must feel this even more-so than I do. And this seems to me, seems to be a major push or platform within the mainstream feminist movement now, is to try and make millennials essentially realize how the rights that they take for granted are, in the grand scheme of things, VERY, VERY NEW. And I think that can explain some of the, I don’t know, dare I say frustration that older women who literally lived through this and experienced it first hand, have, this frustration they have with younger women who don’t realize how tenuous this is, and how new these rights are that they just take for granted.
Sarah: Absolutely. And this is something that I think that we’ve come back to, we’ve circled back to in each one of our three so-far episodes in this series that is this idea of contingency. Right? And that there’s nothing saying that this was a straightforward march toward progress. But I think that you’re absolutely right to say that young women today feel as though this is just a fundamental right that cannot be taken away, because it’s always been there. Right? They’ve always had the ability to go to their pediatrician and ask for birth control, when they were 16, 17 years old. That’s what I did. But, now I think we’re seeing that those uh, rights can be very easily overturned. At least, those of us either with looking back towards history and how recent this has taken place. Right? And something that we’re going to talk about more in the future too is how there wasn’t a moment after Roe v Wade where this wasn’t contentious. People have been fighting tooth and nail since the moment Roe v Wade was decided to get it overturned again. And then there’s nothing saying that the right circumstances won’t line up and it will be overturned. That’s what contingency is all about. Right? Anything could happen, given the right circumstances. So I think you’re absolutely right to say that this is where some of this frustration comes from.
Elizabeth: Coming off of that, with that contingency and that kind of push-back after Roe v Wade, we have even, you know, very current instances of push back.
Sarah: Yeah, and obviously we saw, in those statistics that, in 1960 approves the pill, just five years later you have 6.5 million using hormonal birth control. Since 1960s, birth control has had a really odd position in our culture. It is intensely common: Guttmacher Institute says that 99% of women who have had sex have used some kind of contraceptive.
62% of all women of reproductive age are currently using a contraceptive method
77% of married women use contraceptives
90% of cohabiting unmarried women use a method
89% Catholics; 90% Protestants
67% of women use hormonal methods such as the pill, patch, IUDs, etc.
So this is the overwhelming majority of women, use some form of birth control. That’s not to say that all of them use the pill, this also could refer to condoms. Right?
Sarah: Whatever, right. But 89% of Catholics, 90% of Protestants, even when the Catholic Church still today teaches that birth control is a sin. That that’s taking the decision-making out of God’s hands. Um, so we have this really paradoxical thing happening. Religious women in this country, obviously, according to these statistics are able to both follow a religious practice that says don’t use birth control, but also use birth control. So even though it’s overwhelmingly used, in this country, at the same time this has still be the subject of debate, politically. Even just a couple of years ago, um, in 2012 during some of the debates over the Affordable Care Act and some of the birth control mandate that exists within the Affordable Care Act, there was this sort of, um, controversy that blew up between conservative political commentator Rush Limbaugh, and a young women, then a 30-year-old law student at Georgetown University, named Sandra Fluke. Sandra Fluke, just as a background was invited to speak before House Oversight and Government Reform committee to speak out against the Conscious Clause, that existed…right?…it exists within the Affordable Care Act.
Sarah: And this Conscious Clause allows hospitals, colleges, other places- institutions that are affiliated with religious organizations to deny access to things like birth control because they don’t believe in them because of their religion. And Sandra Fluke testified before Congress that she had this health insurance that came from Georgetown Law that denied her the ability to get her birth control paid for by her insurance.
Elizabeth: And I think it’s important to point out too, from what I remember of her testimony she was actually talking about women that she knew, and friends of hers that she knew that had endometriosis…and other types of, I don’t know, ailments or whatever that are helped by birth control. Right? So it wasn’t even like she was…from what I understand, it’s not like she was even going, saying like, “I’m denied it…” Right? I didn’t mean to cut you off there…
Sarah: No it’s perfectly fine. She also was talking about just how expensive this can be. I think sometimes we forget because it is so ubiquitous that um, depending on what kind of health insurance you have, if you are using hormonal birth control it can be quite expensive.
So Sandra Fluke gives her testimony and then Rush Limbaugh on his show, makes this statement a couple of days later. He says:
“So, Ms. Fluke and the rest of you feminazis out there, here’s the deal. If we are going to pay for your contraceptives, and thus pay for you to have sex, we want something for it, and I’ll tell you what it is. We want you to post the videos online so we can all watch.”
So, I find this really interesting for many, many reasons. One is this linking that he’s making between sexual promiscuity and birth control. But at the same time, Rush Limbaugh doesn’t have 200 children. Rush Limbaugh doesn’t, he’s not driving a conversion van with like 17 car seats in the back.
Sarah: So, it’s uh, it’s a reminder here that everyone used birth control and yet people still have these really strong reactions when women ask for birth control access. As though it’s women, sort of flaunting some sort of sexual promiscuity in the public space. Even though birth control is a men’s issue too.
Elizabeth: Mmmhmm! Exactly! He doesn’t have 200 children. It’s very much a men’s issue.
Sarah: Right, so I think that there’s a subtext here. A lot of times it’s argued that it’s a religious issue but I think that what we’re seeing is that people that say that they feel a certain way about this issue because of their religious convictions, are still using birth control. So I think that there’s something else going on. What I think it is, is that it’s about defending a certain ideological world view that relies on women occupying “traditional” roles. Right? That if women have access to birth control, um, they don’t have to be tied to the home. They don’t have to be at the whim of their uteruses. They can make decisions about what they do. And this goes all the way back to what Margaret Sanger argued for, in the early 20th century. That was her argument, that if women don’t have access to birth control then women can never be liberated. And I think that there’s still a backlash against that.
Sarah: I hope that that was articulate.
Elizabeth: No, it is. And I don’t want to water down your point but also to bring up the, this kind of “othering” of women who use birth control.
Elizabeth: [It’s like] “I can use birth control in my family because I’m an upstanding citizen, but those people over there, they can’t have access to free birth control because they’re going to bring down society.” You know?
Sarah: Yeah, and it comes back again to class too. That a lot of times the argument is well, um, birth control is fine but the government shouldn’t pay for it. So that means that those with means will access to birth control again, and those without means will not.
Sarah: Um, further stigmatizing those women.
Sarah: And kind of entrapping them in a cycle where they can’t get birth control and they can’t get abortions.
Elizabeth: So, pro-abortion and anti-abortion advocates each proclaim deep-seated, fundamental beliefs on how, when, and if abortions are to be performed. The purpose of this podcast is not to debate which side is right and which is wrong but to show that the questions that consume us today are nothing new.
Sarah: Right, to show kind of the long story here.
Elizabeth: Advancements in medicine have profoundly changed our understanding of fetal development. Sonograms alone show us visual pictures of bean-sized fetus’ which expectant mothers proudly display on their refrigerators and Facebook pages. Yet, fetal imagery—a favorite of the anti-abortion movement—presents the fetus as a primary and autonomous thing, treating the mother’s body as a mere environment in which this new life can flourish, or essentially the mother’s body as completely non-existent. The baby floats in a space-vacuum, devoid of the host body that it occupies- the mother’s body.
So a fundamental question remains, at what point does a fetus become a life? The definition of a parasite is: an organism that lives on or in another organism, known as the host, from the body of which it obtains nutriment. Surely that defines a fetus, right, connected to its mother through an umbilical feeding tube? But it’s not such a simple answer as that, is it? The human capacity to reason tells us that it is a much more complex argument. As we have learned throughout this series on women’s reproduction, abortion and birth control have literally been practiced since the “dawn of time.” This is literally something that humans have been doing since we began walking upright, and I would imagine even before that.
Notions of “natural” biology, such as reproduction, are really culturally and historically constructed. The debate pits the autonomy and embodiment of a woman against the biopower of society and the state. These are two very hefty factors and are not to be discussed lightly.
Ethical questions aside, the survey of abortion practice, and birth control, and law since America’s inception allows us the opportunity to explore fluctuating power relations in regards to sexuality and biopolitics. The overarching laws on abortion restriction never eliminated abortion, they just shifted discourse and action to alternate areas. Laws that were enacted over one hundred years ago with the pragmatic, and some would argue selfish, reasons of physicians are now contested on almost exclusively moral grounds. Yet the rhetorical public discourse has historically never meshed with the private discourse and implementation of birth control and abortion. The United States continues to grapple with the ideological, scientific, and pragmatic questions that surround abortion. As new generations are born, societal dogma changes. The cultural construction of abortion presently is not the same as it was in the 1600s, the 1800s, nor will be the same in the 2100s. The ever-changing abortion debate illuminates how repression and power not only function in a law/subject binary but also as imbedded within the system of society itself.
Sarah: Hmmm. Well I think that puts a pin in our series on birth control and abortion in the United States. And I think that this is something the we’ll come back to. I know that we want to come back and talk more about the New Right and the kind of backlash that’s born after Roe v Wade but that will probably have to wait till next season. I’m sure that we will have plenty of political relevance, even you know, that far down the road. So thank you so much everybody uh, that we’ve heard from. We’ve gotten some feedback on the episodes that some, that some of our listeners really like it. I think, some, maybe don’t so much. But, we’re really glad that you stuck around and listened.
Elizabeth: Yeah, we are, so thank you.
Sarah: Until next time, I’m Sarah.
Elizabeth: And I’m Elizabeth, thanks!
Show Notes & Further Reading
Baker, Jean H. Margaret Sanger: A Life of Passion. (New York: Hill and Wang, 2011).
Faux, Marian. Roe v Wade: The Untold Story of the Landmart Supreme Court Decision That Made Abortion Legal (New York: Cooper Square Press, 1988).
Gibbs, Nancy. “The Pill at 50: Sex, Freedom and Paradox,” Time, April 22, 2010.
Gibson, Megan. “One Factor That Kept the Women of the 1960s Away from Birth Control Pills: Cost,” Time, June 23, 2015.
Hubbard, Ruth. “Abortion and Disability: Who Should and Who Should Not Inhabit the World?” in The Disability Studies Reader, Davis, Lennard J., ed., (New York: Taylor & Francis, 2003).
Kaplan, Laura. The Story of Jane: The Legendary Underground Feminist Abortion Service (Chicago: University of Chicago Press, 1997).
McFadden, Robert D. “Norma McCorvey, ‘Roe’ in Roe v. Wade, Is Dead at 69,” The New York Times, February 18, 2017.
Petchesky, Rosalind Pollack, “Fetal Images: The Power of Visual Culture in the Politics of Reproduction,” Feminist Studies 13 (1987).
Reagan, Leslie. Dangerous Pregnancies: Mothers, Disabilities, and Abortion in Modern America (Berkley: University of California Press, 2010)
Featured image derived from Griswold v Connecticut on PBS
Fran · March 23, 2017 at 10:25 am
Great job. Very informative.
Averill Earls · March 23, 2017 at 10:31 am
Thank you for listening, Fran! Please be sure to pop over to iTunes to rate us or leave a review!